Hamir Ali vs Union Of India
2022 Latest Caselaw 5031 Gua

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GAHC010232392022




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                               Case No. : Bail Appln./3083/2022

            HAMIR ALI
            S/O LATE A BDUL HAKIM
            R/O VILL- KOIRIGAON
            P.O. AND P.S. SARUPATHAR
            DIST. GOLAGHAT, ASSAM



            VERSUS

            UNION OF INDIA
            REP. BY SC, NCB



Advocate for the Petitioner   : MR. B D KONWAR SR. ADV.

Advocate for the Respondent : SC, NCB




                                   BEFORE
                      HONOURABLE MR. JUSTICE ROBIN PHUKAN

                                          ORDER

Date : 19.12.2022,

Heard Mr. B.D. Konwar, learned Senior Counsel, for the accused and also heard Mr. S.C. Kayel, learned Standing Counsel for the Union of India (NCB).

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2. This application under Section 439 Cr.P.C. is preferred by the accused Shri Hamir Ali, who has been languishing in jail hajot in connection with NDPS Case No. 01 of 2022, in connection with NCB Case No. 16/2021, under Sections 8(c) read with 22 (c)/29 NDPS Act, pending before the court of learned Special Judge, NDPS, Kamrup(M), Guwahati, since 13.07.2021, for grant of bail.

3. The said case has been registered on the basis of a complaint lodged by one C.S.K. Singh, Intelligence office, Guwahati Zonal Unit of Narcotic Control Bureau (NCB), on 05.01.2022, to the effect that acting on a tip off Shri Anil Kushwaha, Intelligence Officer, has conducted search at the office of Shree Maruti Courier Services Pvt. Ltd, on 03.07.2021 and recovered one consignment, bearing Shipment No. 21032100017728, which was destined to Dimapur and the consignee was Raj Enterprise, Dimapur and the consignor was one Rinku of Varanshi, and having checked the same he found 17.780 kg of SPS-PHEN+ capsules and 90 stripes of Nitrosum 10 Tablet therein and seized the same preparing seizure list. Thereafter, the complainant has sent one dummy parcel to identify and intercept the receivers of the consignment and on 12.07.2021, he has apprehended one Smti. Hotoli and one Hamir Ali, while they have arrived at the Office of Shre Maruti Courier Services Pvt. Ltd, Dimapur, Golaghat Road, Nagaland and received the dummy parcel and then he arrested them and forwarded them to judicial custody.

4. Mr. B.D. Konwar, the learned Senior Counsel for the accused submits that the accused was arrested on 13.07.2022, and he is behind the bar for last 511 days, and final complaint has already been lodged and except the dummy consignment nothing has been recovered from the possession of Page No.# 3/5

accused and that the statement of the co-accused cannot be relied upon in view of the decision of Hon'ble Supreme Court in Tofan Singh vs. State of Tamilnadu reported in (2021) 4SCC 1, and that the trial is yet to be started, and therefore, it is contended to allow this petition.

5. Per contra, Mr. S.C. Kayel, learned Standing Counsel, NCB, has vehemently opposed the petition and submits that there is material to show complicity of the present accused with the offences. Mr. Kayel further submits that the recovered and seized contraband substances here in this case was meant for the Raj Enterprise and while the accused came to receive the same he was apprehended and there is CDR of their mobile phone to show communication between the accused persons and also with the supplier of the contraband substances, and that the quantity of contraband which were recovered and seized and meant for the accused was of commercial quantity and the accused has failed to satisfy the two conditions mentioned in the section 37 NDPS Act, and therefore, it is contended to dismiss the petition.

6. Having heard the submission of learned Advocates of both sides, I have carefully gone through the petition and the documents placed on record and also perused the scanned copy of the record received from the learned court below.

7. There is no dispute that the accused was arrested on 13.07.2021, and since then he has been languishing in jail hajot for a considerable period. But, in view of the judgment of Hon'ble Supreme Court, in the case of NCB vs. Mohit Agarwal, reported in [2022] 0 Supreme (SC) 619, the length of period of his custody or the fact that the charge sheet has been filed and the trial has commenced are by themselves are not consideration Page No.# 4/5

that can be treated as persuasive ground for granting relief to the accused under section 37 of the NDPS Act. That being so, the submission of Mr. Konwar, regarding the period of detention as a ground of releasing the accused on bail has no substance.

8. It also appears that the seized contraband substances were not recovered from the possession of the accused. What was recovered from the possession of the accused was a dummy consignment and the name of the consignee was mentioned as Raj Enterprise, Dimapur and the accused came to receive the same. He has, in his statement under section 67 NDPS Act has clearly admitted the same. There is also CDR to show communication between the accused and other co-accused and also with the supplier of the contraband substances. Besides, the mobile phone wherein co-accused Hotoli shown the consignment number, was registered in the name of the present accused. Thus, apart from the statement accused under section 67 of the NDPS Act, there exist numbers of circumstances on the record and because of the same the matter stands in a different footing. This being the position, this court is unable to record concurrence with the submission of Mr. Konwar, and the ratio, laid down in the case of Tofan Sing, would hardly come into his aid.

9. There is also no dispute that the contraband substances, so recovered and seized, are of commercial quantity. Being so, the embargo, of section 37 of the NDPS Act, will be applicable herein this case. While an exercise is carried out to find out the availability of reasonable ground for believing that the accused is not guilty of the offences that he has been charged with, by examining the materials available on the record of the learned court below, for the limited purpose of releasing him on bail, and to Page No.# 5/5

ascertain that he is unlikely to commit an offence under the Act while on bail, this Court is unable to derive its satisfaction that there exist any reasonable ground to show that the accused is not guilty of the offence and that he is unlikely to commit such offence while on bail.

10. In view of the above, and also in view of the embargo under Section 37 of the NDPS Act, this Court is of the view that it is not a fit case for the privilege of bail that can be extended to the accused. It well settled by Hon'ble Supreme Court in the case of NCB vs. Mohit Agarwal, reported in [2022] 0 Supreme (SC) 619, that liberal approach in the matter of bail, under the NDPS Act is indeed uncalled for.

11. Accordingly, the instant petition stands dismissed. However, the learned court below is directed to expedite the trial and complete the same at the earliest possible time, without being influenced by any of the observation made herein above, as the same is made only for the purpose of disposing this bail application, not on merit of the case, and if necessary, recourse has to be taken to the provision of section 309(1) Cr.P.C.

JUDGE

Comparing Assistant